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Criminal Appeal No. 272 of 1957, decided on 30th Octo ber 1957.

, S. 161‑Demand for gratification made and refused amounts to attempt‑Demand by itself, not sufficient to constitute attempt‑Accused demanding illegal gratification, but subsequently revoking his demand‑No attempt‑Prevention of Corruption Act (11 of 1947), S. 5 (2).

The normal conception of attempt is that a mail has done all that lies in his power towards the commission of an offence, but his efforts are cut short or frustrated by circumstances beyond his control. A demand for gratification made and refused amounts to an attempt, but a demand by itself is not necessarily sufficient to constitute an attempt. For instance, if 'A' demands illegal gratification from 'B' and 'B' says he will pay the gratification the next day, 'A' may in the mean time change his mind from a variety of possible motives.

The prosecution case was that the accused who was a Serishtedar demanded money as a condition of affixing seals on bail warrants from the complainant. One of the complain ants first paid him Rs. 15 from his pocket. The accused said this v as not sufficient. He having no money with himself went out to get Rs. 10 from the other complainant and gave this to the accused, who again threw the money away and refused it. The accused refused to seal the warrants or to hand them over, and rode away on his bicycle despite the protests of the complainants.

Held, this amounted to a revocation of his demand.

There was nothing to rebut the possibility that the accus ed was originally initiating a process of bargaining such as often is found in these bribery cases and there was nothing on record to show that the complainants would not have tendered more if the accused had stood out for more. It appears that the accused himself cut short the bargaining and revoked his demand, in other words he himself cut short his own efforts towards the obtaining of illegal gratification. He may have become irritated or felt his pride injured, but whether his motive or reason was laudable or not it appears that a locus penitentiae existed and that the attempt was not carried to completion. Such a view is reasonably possible.

As no attempt had been proved in this case, the con viction was set aside.

Tufail Ali Abdur Rahman for Appellant.

Muhammad Hayat clunejo for Respondent.

--‑ The appellant has been convicted by Mr. Kharal, District and Sessions Judge, Larkana, acting as Special Judge, under section 161, P. P. C. and section 5 (2) of Act II of 1947, and has been sentenced to 12 months' rigorous imprisonment.

The prosecution case, in brief, is that witnesses Bebram, Wali Muhammad and Ghulam Rasool were among a large number of Maris who with a large number of Bugtis on the other side were defendants in counter‑proceedings under section 107, Criminal P. C. The witnesses had been allowed bail, and two or three days later, on 16th April 1954, a Friday, the Sub‑Divisional Magistrate ordered bail to be granted to the remaining 20 or 25 Maris. The S. D. M. went to have lunch, and then after his siesta (about 5 p. m.) signed the bail warrants. They were taken by peon Sadiq, who is a witness, to the Serislitedar, who is the appellant. The appel lant was working over time, and was the only clerk left in the office.

The prosecution case is that the appellant demanded money as a condition of affixing the seals. Behram first paid him Rs. 15 from his pocket. The appellant said this was not sufficient. Behram having no money with himself went out to get Rs. 10 from witness Wali Muhammad and gave this to the appellant, who again threw the money away and refused it. The appellant refused to seal the warrants or to hand them over, and rode away on his bicycle despite the protests of the Mari witnesses. They then approached the S. D. M. who sent a peon to fetch the appellant. The S. D. M. ordered him to get the warrants, which he did, and then the S. D. M. recorded the statements of witnesses, including the peon Sadiq. He did not record the statement of the Serishtedar under a notion, which I think was mistaken, that the Serishte dar ought to have a legal advice before his statement was recorded. The S, D. M. then reported the matter to the collect and after a long delayed investigation, which the learned Special Judge has rightly protested against, the case was challaned by the Anti‑Corruption Police.

Before the trial Court the peon Sadiq resiled in that he stated the warrants had been handed over to the Maris who had not been able to secure the release of their companions because the tailor had refused to accept the warrants on the ground that they were not sealed. Similarly, witness Ghulam Rasul, who was discredited by his statement to the Sub‑Divisional Magistrate made a similar statement. In cross‑exami nation Behram stated that he did not remember whether he had taken the warrants to the Jailor or not, Wali Muhammad who was described as giving his evidence in a dreamy state by the learned Special judge, adhered to his original story in saying that he had not gone with bail bonds to the tailor before they approached the Sub‑Divisional Magistrate. The; importance of this point is due to the defence which was raised by the appellant both in his statement to the Collector and in his statement under section 342, Criminal P. C. that through oversight due to overwork he had omitted to seal the warrants. The evidence, however, of the Sub‑Divisional Magistrate is clear on the point that the appellant when sent for did himself fetch the warrants from the office. The version of the appellant would involve a conclusion that the Mari witnesses had become so annoyed with him for omitting to seal the warrants that they had brought a false case of bribery against him. This, in my opinion, seems most unlikely. I, therefore, see no reason to disagree with the learned judge upon the point that he had made the demand for illegal gratification.

The last question, however, which was much discussed, is whether the action of the appellant in the circumstances amounted to an attempt to obtain illegal gratification. The normal conception of attempt is that a man has done all that lies in his power towards the commission of an offence, but his efforts are cut short or frustrated by circumstances beyond; his control. It has been held that a demand for gratification made and refused amounts to an attempt, but a demand by itself does not appear to me necessarily sufficient to constitute an attempt. For instance, if 'A' demands illegal gratification from 'B' and 'B' says he will pay the gratification the next, day, 'A' may in the meantime change his mind from a variety of possible motives. In the present case, the Serishtedar, demanded money Rs.15 and then Rs.10 were offered but refused by the appellant and the appellant's action in riding off despite the entreaties of the Maris amounted to a revocation of his demand. It may be argued that his demand was for a' large sum, and that this demand was refused, such refusal being inferable from the tender of smaller sums. But there is nothing on record except the secondary statement of the S. D. M. that Rs. 75 was the amount which the appellant demanded, and as the evidence stands the sum demanded is unspecified. There is nothing to rebut the possibility that the appellant was originally initiating a process of bargaining such as we often find in these bribery cases, and there is nothing on record to show that the Maris would not have tendered more if the appellant had stood out for more. It appears that the appellant himself cut short the bargaining and revoked his demand in other words he himself cut short his own efforts towards the obtaining of illegal gratification. He may have become irritated or felt his pride injured, but whether his motive or reason was laudable or not it appears to me that a locus penitentiae existed and that the attempt was not carried to completion. , At least, I think, such a view is reasonably possible.

I, therefore, uphold the appeal, set aside the conviction under section 161, P. P. C. and section 5 (2) of Act II of 1947 and the sentence.

The appellant should be released.

K. M. A. Appeal accepted.

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